State v. Lasky

• Decision Date: 16 April 2002
• Docket Number: No. 01-2503-CR.,01-2503-CR.
• Citation: 2002 WI App 126,646 N.W.2d 53,254 Wis.2d 789
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Douglas J. LASKY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

254 Wis.2d 789

2002 WI App 126

646 N.W.2d 53

STATE of Wisconsin, Plaintiff-Respondent, v. Douglas J. LASKY, Defendant-Appellant.¹

No. 01-2503-CR.

Court of Appeals of Wisconsin.

Submitted on briefs March 18, 2002.

Decided April 16, 2002.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Eileen A. Hirsch, assistant state public defender.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Gregory M. Weber, assistant attorney general.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

Douglas Lasky appeals from a judgment of conviction for armed robbery and battery, both as party to a crime. Lasky, who pled no contest, argues that his convictions should be dismissed on two bases: (1) his prosecution for armed robbery was prohibited by WIS. STAT. § 939.71² because he had been convicted of the same crime in federal court; and (2) prosecuting Lasky in state court following his federal prosecution violated his right to fundamental fairness. The State disagrees and also asserts that Lasky waived his right to appeal his convictions when he pled no contest.

¶ 2. We conclude that Lasky did not waive his right to challenge the application of WIS. STAT. § 939.71 when he pled no contest. However, we conclude that Lasky's prosecution was not barred because the elements of both aggravated bank robbery, contrary to 18 U.S.C. § 2113(a) and (d),³ and armed robbery, contrary to WIS. STAT. § 943.32(2),⁴ require "proof of a fact for conviction which the other does not require." See Wis. STAT. § 939.71. We also reject Lasky's argument that his prosecution in state court violates his right to fundamental fairness. Accordingly, we affirm the judgment.

STATEMENT OF FACTS

¶ 3. On October 11, 1999, Lasky and his father, Dennis Lasky, robbed the First State Bank in Cecil. According to the criminal complaint, they entered the bank wearing masks and carrying guns.⁵ During the robbery, Dennis hit one of the tellers on the head with a gun. The two men took more than $70,000 in cash from the bank.

¶ 4. Lasky and his father were subsequently arrested. Lasky was charged with crimes in both federal and state courts. In federal court, he was charged with aggravated bank robbery. He pled guilty and was sentenced to seventy-eight months in prison.

¶ 5. In state court, Lasky was charged with armed robbery, theft from a person and battery, all party to a crime. Lasky filed a motion to dismiss the armed robbery charge on grounds that his prosecution violated WIS. STAT. § 939.71. The court denied his motion, concluding that the prosecution was not barred because the state crime contains an element that is not an element of the federal crime, and vice versa. See id. The trial court determined that the state crime required proof of specific intent to steal, while the federal crime required only general intent. Further, the court determined that only the federal crime required that the crime victim be a federally-insured financial institution.

¶ 6. Lasky ultimately pled no contest to armed robbery and battery. The State dismissed the charge of theft from a person. He was sentenced to fifteen years in prison for the armed robbery, consecutive to his seventy-eight-month federal sentence. Lasky also was sentenced to one year in prison for the battery, concurrent with his sentence for armed robbery.

¶ 7. This appeal presents three issues: (1) whether the guilty-plea-waiver rule bars consideration of Lasky's appeal; (2) whether WIS. STAT. § 939.71 bars Lasky's prosecution for armed robbery; and (3) whether Lasky's prosecution violates his right to fundamental fairness. Although we decline to apply the guilty-pleawaiver rule here, we reject Lasky's challenges to the judgment and affirm.

DISCUSSION

¶ 8. The central issue is whether the State was barred from prosecuting Lasky for armed robbery after he had already been convicted for aggravated bank robbery in federal court. The United States Supreme Court has recognized that successive state and federal prosecutions do not violate the Fifth Amendment's proscription against double jeopardy. See Bartkus v. Ill., 359 U.S. 121, 132-33 (1959)

; see also State v. Petty, 201 Wis. 2d 337, 358-59, 548 N.W.2d 817 (1996) (recognizing that a defendant may be placed in jeopardy for the same crime by separate state and federal prosecutions). However, Bartkus recognized that individual states are free to enact statutes that bar subsequent prosecutions, and noted that many states already had.⁶

See id. at 138-39.

¶ 9. Indeed, when Bartkus was released, Wisconsin had a statute limiting subsequent prosecutions. WISCONSIN STAT. § 939.71, which has been renumbered but not amended since its passage in 1955, provides:

Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

This statute substantively enacts the test established in Blockburger v. United States, 284 U.S. 299, 304 (1932), for determining whether two offenses are the "same offense" for double jeopardy purposes. State v. Vassos, 218 Wis. 2d 330, 335, 579 N.W.2d 35 (1998).

[1]

¶ 10. Therefore, the issue presented is not whether Lasky's state prosecution violates his constitutional rights, but rather whether WIS. STAT. § 939.71 bars his prosecution for armed robbery. The circuit court concluded that because the state crime and the federal crime both required proof of a fact that the other does not require, the prosecution was not barred by § 939.71. Because statutory interpretation is a question of law, we consider the application of § 939.71 independently of the circuit court, benefiting from its analysis. See Vassos, 218 Wis. 2d at 334

.

I. Application of the guilty-plea-waiver rule

[2, 3]

¶ 11. Before we consider the application of Wis. STAT. § 939.71, we consider the State's argument that Lasky waived his right to challenge his conviction when he pled no contest. The general rule is that a guilty or no contest plea waives all nonjurisdictional defects and defenses, including alleged constitutional violations occurring prior to the plea. See State v. Bangert, 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986)

; Racine County v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). However, this court has recognized that "double jeopardy is an exception to the guilty-plea-waiver rule." State v. Hubbard, 206 Wis. 2d 651, 655, 558 N.W.2d 126 (Ct. App. 1996).

¶ 12. The State argues that the double jeopardy exception to the guilty-plea-waiver rule does not apply because Lasky is asserting a "simple claim of statutory error" under WIS. STAT. § 939.71, rather than a constitutional double jeopardy claim. In response, Lasky states, "Although this case is not technically a double jeopardy case, the statute is a `first cousin' [to Blockburger], as the state acknowledges in its brief. . . . All of the reasons for exempting double jeopardy cases from waiver apply to this case as well." Lasky also argues that the interests of fairness and judicial economy are served by declining to apply the waiver rule to this case.

[4, 5]

¶ 13. The guilty-plea-waiver rule, like the general rule that failure to timely raise objections at trial will result in waiver, is a rule of administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Although the rule has found widespread application, it does not deprive an appellate court of its subject matter jurisdiction. Id. at 123. We decline to apply the guilty-plea-waiver rule in this case for several reasons. First, application of WIS. STAT. § 939.71 is closely related to a double jeopardy analysis, and double jeopardy claims are not subject to the guilty-plea-waiver rule. Second, Lasky raised the issue in the circuit court, and there is no suggestion that when Lasky pled no contest he expressly waived his right to contest his State prosecution for armed robbery. See Hubbard, 206 Wis. 2d at 656 n.4

(A defendant may expressly waive a double jeopardy defense as part of a plea bargain.). Finally, the issue, which has potential state-wide importance, has been fully briefed and is ripe for decision. Accordingly, we will address Lasky's claim on its merits.

II. Application of WIS. STAT. § 939.71

[6]

¶ 14. Application of WIS. STAT. § 939.71 in this case requires us to compare the elements of aggravated bank robbery under federal law and armed robbery under state law to determine whether the federal crime contains an element that is not an element of the state crime, and vice versa. If each crime "requires proof of a fact for conviction which the other does not require," then Lasky's state conviction for armed robbery cannot stand.⁷ See id.

¶ 15. The parties agree on the requisite elements for each crime. The federal crime, aggravated bank robbery, 18 U.S.C. §§ 2113(a) and (d), requires proof of the following four elements:

First, the defendant took or attempted to take, from the person or presence of another [money; property; a thing of value] belonging to or in the [care; custody; control; management; possession] of (here name bank, savings and loan, credit union, named in the indictment);

Second, at the time charged in the indictment the [bank; savings and loan; credit union] had its deposits insured by the [Federal Deposit Insurance Corporation; Federal Savings and Loan Insurance Corporation; National Credit Union Administration];

Third, the defendant took or attempted to take such [money; property; thing of value] by means of force and violence, or by means of intimidation; and

Fourth, the defendant

...